The House Intelligence Committee on Thursday gutted a piece of legislation that both privacy advocates and the software industry had looked to as their best hope of seeing the government's tight rein on encryption policy loosened.
With a series of amendments, the panel transformed the Security and Freedom through Encryption Act into the opposite of what author Bob Goodlatte, a Virginia Republican, and 252 co-sponsors intended. Where the original HR695 sought to prohibit a national key recovery system that might allow law enforcement quick access to scrambled data, the amended version now requires it. Where the original sought to promote commerce and protect privacy by encouraging manufacture and use of strong encryption, the new-look bill makes use of such products nearly impossible.
The panel approved the changeling bill by a voice vote in a closed session. Details of the amendments were made available by a Commerce Committee staffer who spoke on condition of anonymity. In addition to mandating a national key recovery system in the United States and banning the manufacture or sale of code that could not be instantaneously decrypted by the police, the amendments also specify fines up to US$10,000 and jail terms as long as five years for violators.
"It's a sad day that for the first time a congressional committee would pass legislation so damaging to civil liberties and to industry," said Jon Englund, vice president of the Information Technology Association of America, a trade group representing major software manufacturers.
Industry leaders also said the Intelligence amendments plan would effectively bring the domestic crypto-software industry to a halt. Privacy activists say it would strip Americans of secure communications in the digital age.
Supporters of the Goodlatte bill noted that the committee acted after a long, aggressive lobbying effort by law enforcement and national security agencies.
"The administration says there is a long tradition of the FBI being able to go their own on the Hill, although I thought those days were over," said Jerry Berman, director of the Center for Democracy and Technology. "The committees are voting based on national security versus civil liberties, and national security is winning."
The bill will next go to the Commerce Committee. Two members of that panel stood ready Thursday with an amendment that would ban the domestic manufacture, sale, and use of encryption that does not allow law enforcement immediate access. The amendment was to be offered by Representatives Michael Oxley (R-Ohio), a former FBI agent, and Tom Manton (D-New York), a former New York City police officer.
"Louis Freeh's my guy," Oxley told reporters at the meeting, referring to the current FBI director. "This amendment is technically neutral. It strikes a balance between law enforcement and the right to privacy."
But software lobbyists said the amendment means that they would no longer be able to manufacture encryption products in the United States. "I don't know of one encryption product that would give immediate law enforcement access," said Peter Harter, global public policy counsel for Netscape.
An amendment to the Oxley/Manton amendment was to be introduced by Representatives Rick White (R-Washington) and Ed Markey (D-Massachusetts) calling for a study assessing the effectiveness of mandatory key recovery systems.
All this legislative posturing is not moot.
The Commerce Committee, in conjunction with the four other committees that have already voted on the Goodlatte bill plan to meet with one another and interested parties to work out a compromise bill. It is possible that the committees on commerce, national security, and intelligence will formulate a united substitute bill to replace Goodlatte's proposal. The alternative bill would be submitted to the Rules Committee, which would decide which piece of legislation would go to the House floor. Although 11 of 13 Rules Committee members are co-sponsors of Goodlatte's bill, the chairman, Gerald Solomon (R-New York), withdrew his support in April because of national security concerns.
"We don't want a bill to leave this committee without addressing law enforcement concerns," said Representative Billy Tauzin (R-Louisiana), the Telecommunications, Trade, and Consumer Protection subcommittee chairman and member of the Commerce Committee. He said that although he was a cosponsor of Goodlatte's bill, he would support the Oxley/Manton amendment. "We'd like to do it in a fashion that satisfies all committees and we can't do that all today."
As for Goodlatte, he says he is willing to compromise on some counts, although mandatory key recovery is not one of them.
"I'm pleased," he said rather half-heartedly after the Intelligence panel vote. "We may be able to work this out."
